Opinion
No. CV 07-5012160-S
May 5, 2009
MEMORANDUM OF DECISION
FACTS:
On July 7, 2005, at approximately noontime, the plaintiff was walking north on Hillside Avenue in the City of Hartford in the vicinity of 122 Hillside Avenue when a City of Hartford sanitation truck was driving southerly on Hillside Avenue for the purpose of picking up recyclable materials. A recyclable container was in the area between the sidewalk and the road with a line of trash barrels. When the truck came too close to the line of trash barrels it hit one which went onto the sidewalk. Obviously, the truck was driving too close to the sidewalk when the incident occurred. It is disputed as to whether or not the trash barrel struck the plaintiff. The plaintiff claims that he was hit by the trash barrel and suffered injuries whereas Daniel Garcia, the driver of the truck, and a witness, Senia Joinson, both testified that the barrel did not strike the plaintiff. The plaintiff brought suit against the City of Hartford claiming that he was the victim of the negligence of Mr. Garcia driving too close to the sidewalk causing the trash barrel to fly onto the sidewalk striking him and causing injuries. A court trial was held before this Court on March 11, 2009.
The transcripts of the trial were received on or about March 26, 2009, and the parties were instructed to file original briefs within two weeks which was April 9, 2009 and reply briefs by April 16, 2009. The defendant's brief was received on April 9, 2009, but the plaintiff's brief has still not been received. During the week of April 20, 2009, the Court clerk called the plaintiff's attorney who said that he was almost done with his brief and would file it by Monday or Tuesday the 27th or 28th of April. Despite the gratuitous call to the plaintiff's attorney, no brief has been received from the plaintiff. Accordingly no defendant's reply brief has been received.
STANDARD OF REVIEW:
In order to recover, it is well settled law that the plaintiff must prove his allegations by a preponderance of the evidence. The defendant has set forth a special defense claiming municipal immunity. Connecticut General Statue § 52-557n provides for the liability of political subdivisions such as the City of Hartford. It states in pertinent part as follows:
Except as otherwise provided by law, a political subdivision of the State shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; . . . Except as otherwise provided by law a political subdivision of the State shall not be liable for damages to person or property caused by: . . . (B) Negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.
Therefore, the question arises as whether the negligence of Daniel Garcia was in the exercise of judgment or discretion. There is no question that he was embarked on an official function of the City of Hartford, and he was an employee thereof acting within the scope of his employment or official duties.
ISSUES AND FINDINGS:
"The hallmark of a discretionary act is that it requires the exercise of judgment. On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165 (1988). Also see Colon v. Board of Education, 60 Conn.App. 178, 181 (2000). "Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder; Gordon v. Bridgeport Housing Authority, supra, 165; there are cases where it is apparent from the complaint. See Evon v. Andrews, 211 Conn. 501, 505 (1989). In those cases, it can be considered an issue of law. However, in the case at bar, it makes no difference because the issue of law is to be decided by this Court, and this Court has acted as the fact finder, so it is irrelevant as to the basis for the determination because this Court has the authority to rule on an issue of fact and to rule on an issue of law.
The Court finds by a preponderance of the evidence that when Daniel Garcia was driving the sanitation truck for the purpose of picking up recyclables, he may have been following a policy of the City of Hartford and, therefore, acting in a ministerial capacity when he was driving his truck for that purpose. However, his decision as to how to drive the truck is a matter of judgment and discretion. He may have been speeding and certainly he was exercising judgment as to whether or not he was too close to the trash barrels on the sidewalk. He obviously made an error in judgment by driving too close to the sidewalk and thereby hitting the trash barrel.
As a matter of fact, the plaintiff's allegations in his complaint paragraph seven states, inter-alia, the defendant "failed to have city garbage truck under proper and reasonable control."
"The defendant failed to keep a reasonable and proper look out for obstructions or pedestrians on a public highway/sidewalk."
The complaint in paragraph seven goes on to criticize the defendant Garcia by saying he was inattentive, failed to turn the truck away and avoid collision, failed to apply his brakes in time and made an unsafe attempt to park the city's sanitation truck on the sidewalk of Hillside Avenue. All of these are discretionary acts or failures to act. In Bruce Park Avenue, LLC v. Plant Integration Assoc. Home Care Solutions, Inc., 2007 WL 417 1604 (Scholl, J.), the Court referred to discretionary acts when they alleged that the defendant failed to properly take certain action or he failed to require or failed to abide by certain standards etc., she further stated "the claims of negligence alleged against Warzoha are not the types of actions that have been held to be ministerial by our Courts."
Further, an exception has developed that municipalities retain qualified immunity for discretionary, public action unless the activity subjects an identifiable person or class of persons to imminent harm. This qualification pertains to employee qualified immunity and does not encroach on the common law or the statute involving governmental immunity of municipalities C.G.S. § 52-557n. The leading cases in this area are Sestito v. Groton, 173 Conn. 520 (1979), Verns v. Board of Education, 228 Conn. 640 (1994) and Purzycki v. Fairfield, 244 Conn. 101 (1998). The Court does not find the plaintiff an identifiable victim subject to imminent harm. Mr. Garcia obviously did not see the plaintiff before he was allegedly struck, and this Court concludes, therefore, that he was not an identifiable person to Mr. Garcia subject to imminent harm because Mr. Garcia had no idea that he was going to hit a trash barrel that would allegedly hit the plaintiff. Therefore, the identifiable person subject to imminent harm exception does not apply.
As stated above, there does not seem to be any Appellate cases involving this particular scenario. There are a few Superior Court cases, but they are either not in point or in one particular case they rely on a holding of a Rhode Island case entitled Catone v. Medberry, 555 A.2d 328 (R.I. 1989), Supreme Court of Rhode Island No. 87-542 Appeal March 6, 1989.
This Court concludes that the Rhode Island case does not apply in this situation for the following reasons:
1. This was an accident in which a State owned truck collided with an automobile being operated by the plaintiff's wife killing her. Edward E. Medberry, Jr., was an employee of the Rhode Island Department of Transportation. He was assigned to a litter-cleanup detail on route 4 in East Greenwich, Rhode Island. The Rhode Island General Assembly enacted the Rhode Island Tort Claims Act in 1956 with a 1995 re-enactment chapter 31 of title 9. "The act permits individuals to sue governmental units in the same manner as private individuals for injuries caused by the negligence of state or local employees § 9-3-1 ". . . Under the Tort Claims Act, money damages are generally limited to $100,000. Sections 9-31-2 and 9-31-3. We note, however, that this waiver of immunity by itself does not establish a cause of action in tort against governmental entities . . . Under the prevailing Public Duty Rule, private plaintiffs must show that the governmental body or its agents reached a special duty of care owed to them in their individual capacities. (Citations omitted.) Where the duty is a general one owed to the entire public, most courts prohibit individuals from recovering for injuries caused by the tortious conduct of governmental employees. To recover against the government, therefore, the facts of the case ordinarily must establish a `special relationship' between the plaintiff/victim and the State or its agent. "It is the existence of this special relationship that triggers a duty of care and establishes the basis for potential liability." The Rhode Island Supreme Court in referring to two specific cases went on to say: "in both of these situations `either the plaintiffs have had prior contact with State or Municipal officials who then knowingly embarked on a course of conduct that endangered the plaintiffs or they have otherwise specifically come within the knowledge of the officials so that the injury to that particularly identified plaintiff can be or should have been foreseen' Knudsen v. Hall, 490 A.2d at 978."
This Court finds in the case at bar that Connecticut has a statute, C.G.S. § 52-557n, and, therefore, the common law is not applicable.
Rhode Island may have a statute based upon "public policy," but Connecticut does not have such a statute, and there have been no Appellate or Supreme Court cases as to public policy on these particular set of facts.
Finally, the Rhode Island Court stated "we therefore hold that when the government or its agent engages in an activity normally undertaken by private individuals in the course of their everyday lives, a duty arises under the common law to exercise reasonable care in the performance of this task. Governmental employees, like ordinary citizens, must operate their vehicles in a reasonable safe manner and avoid creating foreseeable unreasonable risks of harm to the motoring public."
This holding by the Rhode Island Supreme Court is based on different law from that of the State of Connecticut. Evon v. Andrews, 211 Conn. 501, 505 (1989) was the case of a building inspector negligently inspecting the basement of a residential home which resulted in a fire because of that negligence. The Connecticut Supreme Court found that the inspection was discretionary and that the municipality was immune from liability. This Court chooses not to rely on the Rhode Island Supreme Court.
Accordingly, the defendant has sustained its special defense and, therefore, municipal immunity does apply to counts one and two.
2. Credibility:
This Court evaluates the credibility of the witnesses based upon their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case.
Also, the Court evaluates general credibility on the basis of other testimony in this case as well as documents in evidence as to their consistency or inconsistency with other evidence.
This Court, having listened to the evidence, finds the truck driver Daniel Garcia and witness Senia Johnson more credible than the plaintiff. It concludes, therefore, that the plaintiff has not sustained his burden of proving that he was struck by the garbage can.
3. In reviewing the medical reports this Court cannot find any healthcare provider's opinion that being struck by a trash can was the cause of the plaintiff's injuries. The only information on being struck by the trash can is based upon the self-serving statements of the plaintiff whom the Court has already found not credible. Accordingly, the Court cannot find that the striking of the trash barrel was a proximate cause of the plaintiff's injuries.
CONCLUSION:
For the foregoing reasons, this Court hereby enters judgment for the defendants.